Appeals court considers Obama's climate change plan

Obama's plan a job killer or a push for cleaner energy?

By Ann E. Marimow and Brady Dennis, Washington Post

President Barack Obama’s signature effort to combat global warming was alternately lauded as a reasonable attempt to move the nation toward cleaner energy sources and faulted as an unconstitutional, job-killing power grab during seven hours of vigorous legal arguments Tuesday.

With the Clean Power Plan’s future on the line, a 10-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit struggled to discern whether the proposal goes too far in trying to compel power plants to cut carbon-dioxide emissions.

The Obama administration contends it merely used its authority to nudge the industry in a direction many companies already are headed — toward more renewable sources of energy such as wind and solar.

This central piece of Obama’s environmental legacy, which probably will remain unsettled even after he leaves office in January, aims to slash the greenhouse-gas emissions that scientists agree are fueling the planet’s rapid warming.

It also is an integral part of the commitment U.S. officials made as part of a historic climate accord signed in Paris last December, with countries around the world pledging to cut emissions aggressively in coming years.

More than a dozen lawyers lined up before an overflow crowd Tuesday to argue the case, with the nation’s leading environmental groups, climate scientists and tech giants pitted against more than two dozen states, industry groups and conservative lawmakers.

At least two judges on the panel, Brett Kavanaugh and Thomas Griffith, suggested that federal agencies such as the Environmental Protection Agency must defer to Congress when it comes to enacting policy with major political and economic implications.

“It’s not just a technicality. It’s rooted in the separation of powers,” Kavanaugh said. “Congress should be making the big policy decisions.”

Eric Hostetler, a lawyer who represented the EPA, said the regulations are well within the agency’s authority. He called the effort a “proper and sensible” attempt to regulate carbon emissions, with no more overall economic consequences for the industry than some existing pollution regulations.

Judge David Tatel appeared to agree. He noted that the regulations would only modestly affect the percentage of U.S. electricity generated by coal through 2030.

“That hardly sounds transformative to me,” he said, adding that it seemed the EPA had invoked “long-standing authority.”

The regulations would direct every state to form detailed plans to reduce CO2 emissions from such sources as coal-fired power plants, enough to decrease carbon pollution by about one-third by 2030, compared with 2005 levels.

Lawyers representing the oil and gas industry and other opponents said the EPA’s regulations would force power-plant owners either to shut down or essentially subsidize competing clean-energy industries.

Lawyer Peter Keisler said the EPA’s far-reaching approach is unprecedented and that new regulations were merely “a lever to force” coal companies out of business.

A long line of spectators waited outside the courthouse just blocks from the U.S. Capitol for more than two hours before the arguments began. Among those listening in the wood-paneled courtroom were EPA Secretary Gina McCarthy, White House advisers and U.S. Sen. Edward Markey, D-Mass.

The D.C. Circuit could take months to issue a ruling — which will almost certainly be appealed to the Supreme Court.

The case, West Virginia v. Environmental Protection Agency, already has had an unpredictable legal path. In an unusual move, the Supreme Court blocked the regulations’ implementation in February. Its 5-to-4 decision, which did not address the merits of the lawsuit, came just days before the sudden death of Justice Antonin Scalia.

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